Losing the Bill of Rights

Last month, President Obama announced that Khalid Sheik Mohammed would be transferred to New York, where he would stand trial in U.S. district court for his purported role as principal architect of the 9/11 attacks. At the same time, Obama announced that other terrorist suspects would continue to be tried for terrorism in the Pentagon’s military-commissions system, which was established after 9/11.

Which judicial system is chosen—the federal courts or military commissions system—has important consequences for accused terrorists. What all too many Americans fail to realize, however, is the enormity of the impact that this dual system of justice has had on the country’s constitutional order. The precedents created here will extend far beyond the war on terror.

Suppose drug-war violence in Mexico spills over into the United States. Gangs begin kidnapping, torturing, and murdering federal law-enforcement agents and judges. Federal buildings are bombed. Gang-war gun battles break out on the streets, resulting in the deaths of bystanders.

The violence induces the U.S. government to re-declare a war on drugs. The president orders the military to undertake at home the same type of interdiction operations it has been taking in foreign countries for decades. The Pentagon immediately sends several thousand battle-tested troops to the southern border to wage the struggle.

When critics complain that the Posse Comitatus Act prohibits the military from engaging in domestic law enforcement, the president responds that this is war, not criminal justice, and that in this war, as in the war on terrorism, the entire world, including the United States, is the battlefield. As commander in chief, the president says, he wields the power to send the military onto the battlefield to capture or kill the enemy wherever he may be found.

And as part of the war, the president and the Pentagon announce that there will now be two alternative judicial systems for handling drug offenders.

One system will be the traditional one established by the Constitution, the one involving federal grand-jury indictments, trials before federal judges, the presumption of innocence, protection from self-incrimination, suppression of illegally obtained evidence, freedom from cruel and unusual punishments, effective assistance of counsel, a speedy and public trial, the right to confront witnesses, and trial by jury.

The other judicial system will be established and operated by the Pentagon, at its prison camp in Cuba. Its procedures will be entirely different from those in the U.S. federal courts. Drug-war combatants shunted into this system will be presumed guilty, subject to torture and abuse, and denied the procedural rights and guarantees provided in the Bill of Rights.

Deciding which system of justice will be applied to each suspected drug offender will rest entirely in the hands of federal officials, especially the military. They will wield full discretionary authority to make the call. As a political and practical matter, the policy will be to send most, but not all, American suspects into the federal court system. Foreign citizens, on the other hand, will largely be subjected to the Pentagon’s system.

While many long-time drug-war proponents would undoubtedly hail such a change as a positive development in their decades-long hope of finally winning the war on drugs, most Americans would surely feel a sense of unease about such an announcement. Many of them would recognize that such a change would fundamentally alter America’s criminal-justice system.

Let’s keep in mind that the Bill of Rights doesn’t really give anyone any rights. Instead, it does two primary things: it prohibits the federal government from infringing upon fundamental and inherent rights of the people, and it forces federal officials to accord people charged with crimes important procedural rights and guarantees that have been carved out in the struggle between liberty and tyranny, a struggle that stretches back centuries into British history.

Why did the American people demand passage of the Bill of Rights? Because they considered the federal government, which the Constitution had brought into existence, to be the primary threat to their freedom and well-being. Americans were convinced that the federal government would end up doing the bad things that governments historically had done to people, such as confiscating weapons to ensure submissiveness to the government and rounding up people for criticizing the government and torturing them.

While no one really thought that the Bill of Rights would dissuade federal officials from desiring to do such things, the idea was to make clear that those sorts of practices were not to be countenanced in this country. If the federal government wished to incarcerate or otherwise punish people, whether foreign or American, it would be required to follow long-established procedures relating to due process of law, a term that stretched back to Magna Carta in 1215.

How does all this apply to our drug-war hypothetical? By assuming the power to treat drug-war violators as enemy combatants, federal officials would be implementing a fool-proof way to circumvent the rights and guarantees provided in the Bill of Rights. This dual system of justice by which the government would wield the power to subject suspects to two alternative systems of justice—one in the federal courts and one in the military tribunals—would constitute the perfect circumvention of the Bill of Rights.

That’s precisely the revolutionary change that was effected by federal officials, including those in the military, after 9/11 with respect to terrorism cases.

Prior to 9/11, the federal government treated terrorism as a federal criminal offense. That’s not surprising, given that terrorism is listed as a federal crime in the U.S. Code. That’s why such terrorists as Ramzi Yousef, who bombed the World Trade Center in 1993, and Timothy McVeigh, who carried out the Oklahoma City bombing in 1995, were indicted, tried, convicted, and sentenced in federal district court.

Thus, those who claim that terrorism is an act of war rather than a criminal offense are simply wrong. It is indisputable that terrorism is, in fact, a federal criminal offense. If you have any doubts, just look at the U.S. Code. Or go look at the federal-court indictments and prosecutions of Yousef and McVeigh, or for that matter, Zacarias Moussaoui, Jose Padilla, Ali al-Marri, or a host of other people, who have been indicted and tried for terrorism in U.S. district courts, both before and after 9/11.

Over time, in the fear-ridden environment following the 9/11 attacks, the Bush administration, working closely with the Pentagon, effected a revolutionary change to America’s constitutional order. They declared that federal officials, as a result of the attacks on the World Trade Center and Pentagon itself, would now wield the authority to treat people suspected of having committed terrorist acts as either criminal defendants or as enemy combatants.

It would be difficult to find a better example of a violation of the principles of the rule of law and equal treatment under law than that. The rule of law is designed to enable people to answer to a well-defined law for their conduct, not to the discretionary judgment of government officials. Yet the determination of whether terrorist suspects would be treated as criminal defendants or as enemy combatants is based entirely on the discretionary, ad hoc decisions of federal officials.

No better example of the arbitrary nature of this process could be found than the Padilla and al-Marri cases and, now, the case of Khalid Sheik Mohammed. Padilla began his journey as an enemy combatant until, after many years of military incarceration and abuse, the government suddenly changed its mind and decided to treat him as a criminal defendant. Al-Marri began as a criminal defendant, was converted to an enemy combatant, and then years later suddenly re-converted to criminal-defendant status. And before Mohammed was suddenly converted to criminal-defendant status, he had been held as an enemy combatant since 2003.

Each system entails completely different forms of treatment. In the federal court system, a person receives the protections of the Bill of Rights. Under the military’s system, he is subjected to the horrors that the Bill of Rights was designed to prohibit or restrict. For example, during Mohammed’s time as an enemy combatant, he was waterboarded 183 times. With his conversion to criminal-defendant status, he won’t be waterboarded at all.

We should also note another monumental change to our constitutional order wrought by 9/11—the power of the military to ignore verdicts of acquittal in federal-court terrorism cases. From the inception of our nation all the way up to 9/11, when a person charged with terrorism was acquitted by a jury of his peers in federal district court, the presiding judge would immediately set him free, which is what the Constitution requires.

Alas, not anymore. Now, federal officials wield the post-9/11 power to ignore the jury’s verdict of acquittal in terrorism cases and keep the person in custody indefinitely as a military belligerent. Thus, in federal criminal cases involving terrorism, federal judges are now expected to check with the military before they free an accused terrorist who has won a “not guilty” verdict from a federal-court jury.

We should bear in mind that this immense power—the power to completely circumvent the Bill of Rights in criminal cases involving terrorism—was achieved without even the semblance of a constitutional amendment. The power was simply declared and assumed by U.S. officials after 9/11.

Given that federal officials now wield the power to treat one federal criminal offense—terrorism—as either a crime or an act of war, there is no inherent reason why such power cannot be expanded to encompass other federal crimes, such as drug offenses. In fact, given the interrelationship between drug dealing and terrorism, one can easily imagine that federal officials will eventually expand their war on terrorism powers to the war on drugs. All that’s needed is the right crisis. It’s a matter of time before the president and Defense Department find ever more uses for this alternate system of justice that conveniently sidesteps the Bill of Rights.

Jacob Hornberger is founder and president of The Future of Freedom Foundation.

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22 Responses to Losing the Bill of Rights

where were you people when it counted? Oh yeah probably busy beating up on the Dixie Chicks ( at the very least you stood by and let it happen) Even Oprah chickened out.So who did we have standing up to all of this- oh yeah Helen Thomas who had the steel to ask a simople quesion of Bush and Donahue. As always liberals seem to ask the simple questons WHEN IT MATTERS NOT LATER WHEN IT IS TO LATE. well best of luck

peter lafond is way off base and obviously new to the opinion of Jacob Hornberger, who roundly lambasted Bush Sr., Clinton, and Bush Jr. before taking on Mr. Obama. “Where were you people,” asks lafond? Why, right in the thick of the struggle to restore and maintain liberty. This is clearly where lafond was NOT, or he would have heard of Horbnerger by now. Sounds like lafond is just giving us a knee-jerk reaction, regurgitating talking points that were fed to him by some political organizer, agitator or other low-life.

Greetings. Unfortunately, the Bill of (so-called) Rights was destroyed by FDR and before. Each and every president that began initiating executive orders violated both the Constitution, and its limitations and restrictions, and the Bill of Rights. Our present socialist, communist, demokory is the first step to total subjugation.
Santayana, among a couple of other great philosophers, warned us about repeating the mistakes of the past, but man never seems to learn. The handout society wants but does not think about who is giving or whether or not they should be giving! May the Creator bless the (once) Republic!

The Bill of Rights is long gone. When the first president signed an executive order, that became the override of whatever limitations and restrictions that both the constitution and the so-called, Bill of Rights had provided!
Long live the demokory/demokracy!

The Bill of Rights is not long gone. We fight for freedom, then ridiculous laws, manipulation and executive orders take it away. We watch it happen right before our eyes. We fight again. Over and over ~ yes it does feel like man never learns.
Who was the first president to override the constitution and the Bill of Rights? We should’ve climbed right down his throat. Hindsight, is 20/20.
Who thought up the drug war? I am almost positive it wasn’t Nixon. It had to be some advisor, his wife, or dea looking for more?
This article of Mr. Hornbergers has helped me see clearer than ever before. I have not read and understood the magnitude of the decisions made during a time of extreme fear, as I have now with the reading of this piece.
Why didn’t our president “override” this and make them all stand trial with a federal grand jury? Why can’t we just go back to the way it was supposed to be handled? Even Bush and his Pentagon Posse were not thinking straight after the attack and perhaps they made a horrible mistake. In a perfect world I guess.
Every day it gets worse. I want to know what I can do.

This once great Republic was lead down the path of destruction almost before the ink was dry on the Declaration of Independence. My wife bought me a large tome entitled, The Chronicles of the World. When I finished reading it she asked me what I thought of the book. I responded that the book did Chronicle the constant war(s) that man has allowed himself to be involved in for the profit of just a few. Millions upon millions of lives have been sacrificed, and for what?
There are two sides in this battle to attain the love that the Creator has tried to demonstrate for us with the example of Jesus Christ. There are those whose greed far surpasses any thought of that love, and there are the rest of us who also seem to enjoy the greed of the peasant mind. A discerner can readily see that greed daily in the actions of mankind. Oh certainly there are a few people who attempt to emulate the Words of Christ, but they also falter, consistently.
Man will never realize the purpose for his existence until he follows in the path of love that the Creator has designed!

One type just wants everyone to leave everyone else alone and these humans are students and advocates of the Philosophically Mature Non-Aggression Principle.

The other type refuses to leave others alone and these humans are the Mobocracy Looter Minions with their hords of bureaucrats, jackboots, and mercenaries that perpetuate the perpetration of the loot and booty gravy-train. Please help us and yourselves by ending the rob-peter-to-buy-paul’s-vote bread and circuses of the doomed Amerikan Empire.

You are either the one…or the other.

The John Galt Solution of Starving The Monkeys is the only solution. Stop funding and forging your own chains and shackles. What are you leaving for your children, grandchildren, and humanity!?!

The Mobocracy Looter Minions must be allowed to consume everything around them, then each other, and finally themselves. There is no other way. Ayn Rand wrote about it over fifty years ago and it rings as soundly today as it did then.

Get your copy of Starving The Monkeys by Tom Baugh today, before the book is banned and the author is hunted down and Vince Fostered!

Sincerely,
John and Dagny Galt
Atlas Shrugged, Owner’s Manual For The Universe!(tm)

While I agree this “dual system” is troubling, I disagree it must be abolished entirely. The real problem is the Bush and now Obama Administrations are arbitrarily deciding to process some suspects through the military commission system and others through the judicial system. The military commission system is totally acceptable as a means to decide whether a enemy combatant was a “franc-tireur” and thus not entitled to the protections of the Geneva convention. Generally a franc tireur is someone who without military uniform or other insignia engages in armed conflict in the combat zone or crosses into the enemy belligerent’s territory to wage war or engage in espionage. If that is the limited role of the military commission, the issue is moot, if the Federal government seeks more expansive use of the military commission, then pressure needs to be put on Congress to make the use of the commissions with the laws of war.

Isn’t it one of Congresses few enumerated powers to “make rules for captures at land and sea”? It seems that the legislative branch has once again abdicated its role to the executive (and to some extent the judicial). Of course, Congress could also clear up a few questions by actually declaring war. That would leave no doubt that someone captured under arms, fighting U.S. troops in Afganistan is (at the very least) a POW. We don’t need to apologize for holding POW’s indefinitely — that’s what can happen to POW’s. In any event, Congress needs to deal with this, and deal with the other branches infringing on their balliwick, instead of just complaining incesantly when the executive cashes their blank check.

We wouldn’t be trying the people we are discussing if we weren’t trying to impose our Christian based democratic principles on a people whose religion is called Islam which literally means submission. I’m not saying they are right, wrong or otherwise, but clearly our policy of forcing our worldview on others is in error. It might also help if we took a more truly neutral stance on the Israeli/Palestinian situation, since both sides have done things I certainly don’t condone.

As to the thinking about the war on drugs, drug lords only have power and the cash to impose their power while drugs are illegal. Legalize the drugs, you steal their thunder. War on Drugs officially over and won. The nature of human beings cannot be changed through legislation. Adults should have the right to decide what they want to put in their own bodies whether it be medicinal or recreational. Even if they do themselves harm. That is called freedom. With freedom comes responsibility.

I guess the author wanted us to arrest Germans and Japanese during World War II and bring them to the United States for criminal trials. Let’s not call war, war anymore and just call evil good and good evil too!

Well, it seems obious to me, but I cannot understand how the courts have allowed this continued violation of our rights. The declaration states “We hold these Truths to be self-evident, that ALL Men….(CAPITALIZATION MY OWN). These laws apply to ALL persons, not just those born or naturalized here.
And yes. I have know Jacob (Bumper) as a freedom fighter for 30 years!
Oh, and the first president who violated the constitution was Jefferson with the Lousania Purchase. There was even a call to impreach him because of it. So, these problems are not new, they are simply ours now to correct.

We have no conceptual framework to deal with international terrorism. We wither consider it a criminal act or war. Unfortunately it is both and we still have developed a system that can deal with that reality. We may argue that Congress has abdicated its war making authority but who do we declare war against? Modern terrorism requires a new perspective but we insist on looking at our response to it with tools that are woefully out of date.

The problem comes down to this: The Constitution is not a self-enforcing document. As Hornberger says, the Bill of Rights could only make clear what would NOT be tolerated. The Founders trusted the people, working through their sovereign States, which were backed by independent militias, would stand up to Federal encroachments.

It’s time the people of the States reclaim their rights, as well as the means of enforcing those rights.

While it is true that the use of a military tribunal to determine the appropriate status of a person, your post is misleading in certain respects and this reasoning is widespread. Namely, that someone can be not subject to the Geneva Conventions. This is simply not true. The Conventions cover EVERYONE, whether an enemy combatant or not. It merely details what cannot be done to each category of people (e.g. medical personnel, combatants, militiae, and civilians). Therefore, a person MUST fit into one (or perhaps several) categories and this is what the military tribunal should determine. Although, the original conventions did allow for the execution of franc tireur, this was always a subject of dispute with many parties to the treaty arguing that these persons should be treated as combatants. The revised conventions and subsequent trials based thereon has declared that a person falls into one of those categories and the concept of franc tireur has been, de facto, abandoned.

Specifically, “the Commentary to the Fourth Geneva Convention asserts that Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view.” Jean Pictet (ed.)[3]

John McCain has finally flipped his lid..referring to S.3081, a bill that would authorize the federal government to detain American citizens indefinitely without trial. I hope people finally see who he really is and out him. http://eaglesnest2.ning.com Can you imagine him as President? He’d run the US like it was a PW camp
SEC. 5. DETENTION WITHOUT TRIAL OF UNPRIVILEGED ENEMY BELLIGERENTS.

An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(c)(2) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.